Ellington v. Ellington , 47 Miss. 329 ( 1872 )

SlMRALL, J.:

There was no express remedy given by the law, to redress the wrong done the parent in the seduction of his child. The special action on the case was therefore allowed, in this, as in other instances where a wrong was done, and no “ original writ” would bo found in the chancery that would suit the circumstances. This form of action, was early accepted— grounded on the idea that the daughter bore the relation of a servant to the parent; the declaration alleging, “per quod servitum amisit.”

Judicial history shows, however, that the relation of master and servant, has but little more importance now than as a legal fiction, giving a “ technical” right to sue. In substance, the suit is to punish in damages the seducer for the dishonor, disgrace, and mental distress, brought upon the parent. The master may recover for the detachment of the female apprentice or servant, if thereby he has lost her service, or been put to expense. So the master may recover for the beating of his servant, if thereby he has been especially damaged.

But one who stands in the relation of a hirer of a servant, or of a master to an apprentice, sustains generally no other damages from such injuries than as they interrupt the rendition of the services or involve pecuniary expense. The relation of the parent to the minor daughter, embraces much more than this. The parent is bound for the maintenance and education of the child, to train it morally and mentally so as to prepare the woman for the duties and responsibilities of life. If, therefore, the whole scheme of life as respects the daughter is broken up by a stain of dishonor put upon her, there has been an unlawful interference with the relation between parent and child; such at least is the moral view of it. The parent is entitled to the love, respect, obedience and services of the minor child. During minority it is subject to the parental control. If there supervenes a change of that condition, it must be distinctly proved. If the child go out to service, or takes up its abode in the family of another, it is presumed to be with the parent’s consent, subject to be revoked.

The ground of the action is purely technical; the older cases required the proof of some sort of service, however small. That has been receded from, and later authorities say it is enough to establish the “ right to claim services.” If the daughter be over 21 years of age she is emancipated from parental authority, and may dispose of her time and her earnings at pleasure. In order that the father in such cases may maintain the suit, the daughter must reside with him and perform some acts of service, though slight. But if she is under 21, although she does not live with him, and may be actually in the service of a stranger, if, de jure, he may control her services, he may sue. Savage, C. J., Clark v. Fitch, 2 Wend. 461. In that case, the father gave to his daughter her time absolutely, and had told her she must support herself. When the seduction occurred and the child was born, the daughter was in the family of her employer. The accouchee’s fee had been actually paid by another person, who said he looked to the father for reimbursement. The last circumstance was all that there was in the case that indicated any loss to the parent. That, however, had not been sustained. The judgment rested upon the reason that the paternal control had not been relinquished; that the license given the daughter could at any time have been revoked; that in case of sickness or infirmity, incapacitating her to support herself, .the father would have been obliged to maintain her.

Judge Reeve, in his Domestic Relations, 292, very aptly suggests, “ that when the daughter is bound out to service, a rigid adherence to the idea that the loss of service is the ground of the action, would prevent the father’s recovery, but if we consider this action as really having its foundation in another principle, viz.: the disgrace of the family, it would be no objection to the maintenance of the action, although the daughter should live as an apprentice to a master.” In Hewitt v. Prime, 21 Wend., Nelson, C. J., remarked that it “ was apparent from a perusal of modern cases, and elementary writers in England, that the “ old idea of a loss of service ” has gradually given way to a more enlightened and refined view of the domestic relations. In this case a charge to the jury was sustained — “ that no loss, expense or damage prior to the suit brought need be shown; it was enough to prove the seduction.” The suit was begun some months before the child was born. In Martin v. Page, 9 Johns. 387, the daughter, at the time of her seduction, resided in the family of her uncle, and worked for him when she pléased, for which he agreed to pay her, but there was no agreement for her continuance with him for any definite time, nor did she have any expectation of returning to her father. On these facts, Spencer, C. J., held, that the father had made no contract for hiring out his daughter, and that although she had no intention of reluming, that did not terminate the relation ( of parental right to her services,) because her volition could not terminate his right. The learned judge further remarked, upon the case of Dean v. Peel, 5 East. 49, that it was the only one in which the right of the father to maintain the action, the daughter being under age, had been denied. The case being distinguishable from that when the daughter was over age and in the service of another, as in 3 Burr, 1878. There was this other peculiar feature — the daughter was under an indenture of apprenticeship at the time of the seduction — therefore, it was urged that the master alone could maintain the action. The response to that was, that the form of the action being ease, the gist of it was the consequential damages, and how the seduction being such misconduct as would ■entitle the master to put an end to the apprenticeship, and the daughter having actually returned to her mother, the suit was brought within the requirement of the technical rule.

The judge supposes the case of the defilement of an apprentice or hired servant by the master, and puts the query, has the parent no redress 1 “ The supposition is not to be endured.” . In Hornketh v. Barr, 8 Serg. & Raule, 36, the objection was, that the daughter for many years had resided in Philadelphia, sometimes with her sister and sometimes out at service, so that the learned judge replied that he considered “the action was substantially brought by the father for the debauching of his minor daughter, and it is not necessary the child should actually live with the father, if she resides elsewhere, with or not against his consent.” Recurring to the English cases, decided by the most eminent judges, we will find the same judicial inclination.

In Forbes v. Wilson, Peake’s Nisi Prius Cases, Lord Kenyon, whilst holding that there must be some relation of master and servant, said that a very slight relation was necessary, and that it had been determined, that “ where daughters of opulent families had been seduced, the parent may maintain the action on the supposed relation of master and servant.” In those cases where the daughter has attained majority — as in Bennet v. Alcott, 2 T. R. 166 (she was thirty years old,) the smallest service was sufficient, such as occasionally milking the cows. In Dean v. Wynkoop, 18 N. Y. 45, the indenture of apprenticeship was set up in bar of the action. But proof that the defendant procured the apprenticeship, to give him the opportunity of seduction, was an answer to the defense. In Mulnhall v. Millward, 11 N. Y. 343, the test of the parent’s right to the action is put upon the ground of “ his right to the daughter’s services,” irrespective of whether she is living in his family, or in service for wages.

The form of action may be sometimes trespass, alleging the breaking and entering the plaintiff’s close, as the “technical right,” the seduction being in aggravation. If the trespass can be justified, the damages for the seduction would fall with it. A notable instance of the evasion of the technical rule is furnished by Hubbell v. Wheeler, 2 Atk. (Vt.) 359, the action was trespass quare clausum fregit, the seduction being laid as among alia enormia. The defendant being a boarder in the family, justified his right to enter the house. The plaintiff, however, was permitted to recover on the idea that he might novel assign the debauchment of his daughter, and recover for that as a distinct tresspass. The later cases in New York, such as Bartley v. Richmeyer, 4 Comst. 38, reversing the same case in 2 Barb.; Dean v. Wyncoff, 3 Seld. 191, and Mulnhall v. Millward, 1 Kern. 343, dissent more or less from the earlier cases, and evince a disposition to return to the old rule, in that they have not been followed by the American courts generally. In Indiana, in Botton v. Miller, 6 Ind. 265, the court treats it as the settled American doctrine, “ That the relation of master and servant exists constructively between the father and infant child, although she is actually in the service of another, provided the father has a right at any time to reclaim her services.” In the previous case of Boyd v. Boyd, 8 Black, 113, the father had given his daughter her time, and she had left his house a year previous, without intention of returning, and was residing with the seducer at the time, etc., yet the father maintained the action. In Botton v. Miller, the daughter, at the time of seduction was residing with a master, under defective articles of apprenticeship. The court held, however, that it was of no greater force than a license to appropriate her time and wages to her own use; which he could at pleasure recall. In Virginia, in Lee v. Hodges, 13 Graft. 728, it is conceded that, as respects a minor daughter, the old English rule, “ as respects the facts and circumstances necessary to prove the relation of master and servant, and the loss of service, vary in some important particulars from those which have prevailed in England.”

In Kentrick v. McBeany, 11 Ga. 604, the daughter was over twenty-one, and the objection was that the plaintiff (the father) must prove a contract of service. Held, not necessary to prove such a contract, so long as minority exists; the law gives dominion over the child, after majority ; if she resides in his family, the contract is presumed if she is in situation to render services. And this presumption is indulged for the most benevolent purposes; “to preserve his domestic peace, by guarding the purity and innocence of his child.” In Roberts v. Connelly, 14 Ala. 239, the right to maintain the suit is put upon the authority of the parent to control and command the services, “ and it is not necessary to prove actual services rendered, or that the seduction took place whilst the daughter was residing at her father’s.” In the well-reasoned case of Parker v. Meek, 3 Sneed (Tenn.) 31, the seduction occurred during the lifetime or the father; hut after his death, the daughter remained with the mother, and gave birth to a child; it was held that the mother could recover. If the form of the action had been trespass, stating the unlawful breaking and entering the close, as the technical gist of the complaint, and laying the seduction as consequential damages, it is manifest the mother could not have succeeded ; because at that time the father was living, and the trespass would have been upon him. But in case the gist of the action is not the illegal entry upon the premises, but the consequential damages that ensue from the injury to the daughter. In this view, it does not matter whether the daughter be an inmate of the mother’s family, or not, when the wrong is commited upon her.

We have gone far enough into the subject to show quite clearly that the “per quod servitum amisit” feature of the action has not been permitted to stand in the way of the recovery of damages for the substantial injury. If an indenture of apprenticeship be in the way, the misconduct of the apprentice has been held to be a cause of dissolution, and if the daughter quits the master, the dissolution will be made to relate back, if necessary, to the date of the wrongful act. If the debauchment occur in a distant state or town, as where the daughter is at school, or in employment for wages, on the declaration of the father, that she must shift for herself, or support herself, yet he is de jure entitled to her services, earnings and society, and so may maintain the action. If, at the time of the defilement, she resided elsewhere, and so continued at the birth of the child, and the father had lost no services, and was only bound for the accoucher’s fee which a friend had paid, it has been held he can recover. If she be defiled by a master to whom she is apprenticed, or in whose employment she may be, although she receive and appropriate her wages, the courts, in several instances, putting the supposititious case, have decided it would be monstrous to refuse the action.

A perusal of the books shows how difficult it is for the judicial mind to emancipate itself from forms sanctioned by age and long experience. But courts can not stand still, and observe society in the march of improvement towards higher development of morals, and a more refined appreciation of its varied relations. Jurisprudence must expand its principles, and their applications, so as to keep in harmony with the necessities of advancing society. The idea that this action rests upon the relation of master and servant, originated in a ruder civilization than ours. The true relation of parent and child, is that of protection, nurture and education, on the one side, and dependence, filial affection and obedience on the other. The ties of nature are generally sufficient to enforce these duties. Control over the child, so as to dispose of its time, and labor, and person, is necessary in order that the parent may so train and guide his offspring, as that it may be a virtuous and (according to circumstances) a useful and intelligent member of society. The family is the oldest institution among men; out of the aggregation of these lesser communities, the state and the nation is made up; whatever tarnishes the purity and honor of the female members, whilst entailing disgrace and suffering upon the family, also in its effects is a public wrong.

That system of jurisprudence which punishes in damages the slightest aggression upon property, but denies redress to the father, and if he be dead, to the mother, for the defilement of an infant daughter (except upon the predicate of a loss of services), is at variance with the sentiments and conscience of this age.

So clamorously has the injury inflicted upon the parental feeling, and the disgrace attaching to the female, and reflected from her upon the family, pressed upon the judicial mind, as the substantial injury to be redressed, that the courts have, in case after case, so frittered away the technical gravamen of the action, that but little more now remains except the barren form. The remark of an eminent judge is true, “ that this relation of master and servant is but a figment of the law to open the door for the redress of the real injury;” “the parent comes into court asm master, he goes before the jury as a father.”

In the best considered cases, those at least that receive our assent, this is the principle: For the seduction and defilement of a minor daughter, the parent may recover for the wrong, because it is his right and duty to protect the person and the morals of his child, and so long as disability of non-age continues, he has, de jure, the authority to control its person and conduct, its society and services; that the abnegation of this authority and right is not to be presumed, unless there has been some decisive act done, or contract made, bjr which the parent, in such form as is obligatory, absolves the child from dependence upon him, and places her under the control and disposition of another; and while this condition of things continues, he may maintain the action, although the injury be done whilst the infant was an apprentice. If that relation be dissolved, and the parential rights are resumed, the suit may rest upon any consequential damages the parent may have sustained.

If the daughter be defiled by • the person in whose family she resides as a member, or to whom she may be hired for wages, such person will be amenable in damages, on the idea of being a tort feasor, from the perpetration of the injury, or because the wrong-doer shall not be permitted to plead that which was intended to be for the good of the child, as a justification for her ruin. In the case of a minor daughter, it is not necessary to prove a loss of service, or expense incurred. The father, or mother (if he be dead), may stand upon the “ parental right to command them.” The value of the society or services o.f a daughter consists very much in the innocence and purity of her person and character, and are greatly depreciated in consequence of her defilement, which not unfrequently occasions their total loss. Judge Reeve, in his text, lays it down, if the father be dead, the mother may bring the action. Domestic Relation, margin 292. In Sergeant v. -, 5 Cow., the suit was by the mother. So in 3 Sneed, supra; 5 Ohio 317. In this case the daughter was not in the employment of the defendant under a contract for services. The mother had not abandoned her parental authority. The confinement and birth of the infant took place at the mother’s house. So there is no difficulty in bringing the case within the rule approved by the best considered authorities.

Justice has been done by the jury, on the facts in evidence, and we think it unnecessary to examine .each specific point made for a reversal of judgment.

Judgment affirmed.